Introduction

Sources of Hindu law have been discussed here. Law keeps on changing as per social needs. Hindu law is believed to be about 6000 years old and has emerged from various ‘sources of Hindu law‘. Therefore it has witnessed many changes along with the changing need of the society owing to its development over years. The sources from which Hindu law has emerged and developed have been classified in 2 categories: 1. Ancient sources and 2. Modern sources.

Sources of Hindu law:

Following is the list of sources of Hindu law:

1. Ancient Sources of Hindu law
   • Srutis
   • Smritis
   • Commentaries and digests
   • Customs
2. Modern Sources of Hindu law
   • Equity, justice and good conscience
   • Precedents
   • Legislations

Following is the explanation of each of the above sources:

1. Ancient Sources of Hindu law :

• Sruti

Sruti means ‘what was heard’. Hindu law is believed to be a divine and sacred law. It was believed that during the ancient times, the spirital people through their devotion and spirituality attained such level of wisdom that the had direct communion with the God. Such law reveled to them through the voice of God become a source of Hindu law and is known as Sruti.

Such revelation is contained in 4 Vedas namely; (i) Rig Veda, (ii) Sam Veda, (iii) Yajur Veda, (iv) Atharva Veda. Such revelations were mainly about the life and way of living of the ancient people and contained vast material on this subject, all of which can’t be directly applied as law but provide stances as to its existence.

• Smriti

Smriti means ‘what was remembered’. They deal with what was remembered by the sages who heard the divine revelations after attaining the heights of spirituality.

Smritis can be classified into 2 categories: (i) Dharmasutras, (ii) Dharmashastras.

(i) Dharmasutras: These were usually in the form of prose and contained duties of men. Some of the examples of Dharmasutras are: Gautama, Harita, Vasistha etc.

(ii) Dharmashastras: They are in the form of metrical verses. These are constituted of 3 parts: Achara, vyavahara, Prayaschita. Achara means the religious rules to be observed. Vyavahara means the civil law of conduct. Prayaschita means the penance and recourse.

• Commentaries and Digests:

Since there were some inconsistencies among the Smritis, there was a need of systematic and clear rules. This need led to the emergence of this source of Hindu law. Several commentators and digest writers wrote their analysis based on the Smritis in the form of commentaries and digests.

For example, A commentary was written by Nanda Pandit on Vishnudharmasutra which was known as Vaijyanti.

• Customs

A usage when performed repeatedly and consistently since ancient times takes the form of a custom. A usage means particular pattern of human behaviour.

Essentials of a custom:

1. It must be continuous (should be performed with interruption)
2. It must be certain (should not be ambiguous or unclear or vague)
3. It must be ancient (should be practised for a long time)
4. It must be moral
5. It should not be against public policy.
6. It must not be against any law.

Kinds of custom:

1. Local custom (The customs which are practised over a locality or particular geographical territory)
2. Family custom (The customs which prevail over a family)
3. Community custom (The customs which prevail over a community)

2. Modern sources of Hindu law:

• Equity, justice and good conscience:

The points on which law is silent are decided on the basis of the doctrine of equity, justice, good conscience.

According to Brishaspati, “No decision should be made merely exclusively according to the letter of the shastra for in the decision devoid of yukti (reason or equity), failure of justice occurs.” [Brihaspati, II, 12]

Over time this has also developed as a modern source of Hindu law.

• Legislations and statutes:

Overtime the Hindu law has been codified into 4 statutes which have been recognised as sources of Hindu law. These 4 acts are:

Hindu Marriage Act, 1955,

Hindu Adoption and Maintenance Act, 1956,

Hindu Minority and Guardianship Act, 1956

Hindu Succession Act, 1956

• Precedents:

The judicial decisions on the subject matter have also become an important source of Hindu law as they lay down certain important doctrines and also emphasise important principles of this subject.

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